DOMENECH v. CITY OF NEW YORK

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

May 14, 1996

CAROL DOMENECH, Plaintiff, against THE CITY OF NEW YORK; DAVID N. DINKINS, Mayor of the City of New York, RAYMOND KELLY, Police Commissioner of the City of New York; DEPUTY CHIEF INSPECTOR PAUL SANDERSON; CAPTAIN ALBERT GIAMONTE, CAPTAIN THOMAS CAVANAUGH; LIEUTENANT CARMINE MOSCHELLA; LIEUTENANT JAMES PETERS; SERGEANT CRAIG SCHROEDER, and SERGEANT MICHAEL RYAN, Defendants.

Local Rule 3(j) is to be narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the court. See Caleb & Co. v. E.I. Du Pont De Nemours & Co., 624 F. Supp. 747, 748 (S.D.N.Y. 1985). In deciding a Local Rule 3(j) motion, the court must not allow a party to use the motion to reargue as a substitute for appealing from a final judgment. See Morser, 715 F. Supp. 516 at 517; Korwek v. Hunt, 649 F. Supp. 1547, 1548 (S.D.N.Y. 1986). Therefore, a party in its motion for reargument "may not advance new facts, issues or arguments not previously presented to the court." Litton Indus., Inc. v. Lehman Bros. Kuhn Loeb, Inc., 1989 U.S. Dist. LEXIS 9145, No. 86 Civ. 6447, 1989 WL 162315, at *3 (S.D.N.Y. 1989).

Because the Opinion failed to deal specifically with Defendants' qualified immunity argument, the motion to reargue will be granted. However, findings underlying the qualified immunity argument were addressed in the Opinion, and compel the same denial of summary judgment.

Under the doctrine of qualified immunity, public officials are immune from liability for civil damages if they establish either that (1) their conduct did not violate clearly established rights of which a reasonable person would have known; or (2) that it was "objectively reasonable" to believe that their acts did not violate clearly established rights. Anderson v. Creighton, 483 U.S. 635, 637-41, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987); Weg v. Macchiarola, 995 F.2d 15, 18 (2d Cir. 1993); Mozzochi v. Borden, 959 F.2d 1174 (2d Cir. 1992). Where reasonably competent officials could disagree as to whether the conduct at issue would violate clearly established rights, the immunity defense is available. Malley v. Briggs, 475 U.S. 335, 343, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986); Cartier v. Lussier, 955 F.2d 841, 846 (2d Cir. 1992). In arguing for summary judgment on the original motion, the Precinct Defendants argued that the Precinct Defendants are immune from liability because it would have been objectively reasonable for them to believe that by retaliating, they were not violating Domenech's civil rights. They based this argument on the premise that Domenech's complaint was not a matter of public concern. They noted that Domenech's complaints to the Equal Employment Office referred only to her failure to receive an emergency day off and to her receiving a Command Discipline after having failed to report to duty. Therefore, the Precinct Defendants alleged, they could have concluded that Domenech's complaints were not a "clear public concern," and it would have been reasonable for them to have concluded that retaliation against Domenech was lawful.

As to the question of whether it was objectively reasonable for the Precinct Defendants to believe that their acts did not violate clearly established rights, the Opinion noted that:

Domenech twice complained to the OEEO, and that body followed up her complaints by investigating within the Precinct. Construing the evidence in Domenech's favor, a genuine issue of material fact remains as to whether this investigation brought Domenech's complaints to defendants' attention.

The Defendants' knowledge of Domenech's complaints is evidenced by Schroeder's comment to Sergeant Miranda that he should "watch" Domenech because she had made OEEO complaints. Sanderson'S advice to Domenech that she should "take the sergeant's test" could also be construed as an adverse action against her. When she sought advice from Sanderson regarding her problems with the other defendants, instead of helping her to initiate further complaints, he merely advised her to avoid the problem. It is arguable that a trier of fact could find that this advice, given instead of support and instructions, was Sanderson's way of ignoring Domenech's complaints in light of her OEEO action. Finally the filing of this lawsuit drew further attention to Domenech's complaints.

Op. at 12-13.

The Opinion thus makes clear that a genuine issue of material fact exists as to whether the Precinct Defendants could reasonably have believed that their acts of retaliation did not violate clearly established rights. Especially given that the parties have submitted no affidavits as to their beliefs or actions, a reasonable finder of fact could, on the evidence presented, deem the Precinct Defendants to have been aware that they were violating Domenech's rights through their retaliatory acts. Summary judgment cannot, therefore, be granted.

Conclusion

For the reasons stated above, the Precinct Defendants' motion for reargument will be granted, and, on reargument, the motion for summary judgment will be denied.

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